A Copyfighter’s Musings

Urs Gasser and Michael Girsberger have authored a new Berkman Center Digital Media Project report on present implementation of the EUCD.  This is one of several fascinating Project papers that will be released in the coming weeks – keep your eyes peeled.  Here’s the abstract:

“In this paper, the Berkman Center’s Digital Media Project team provides an overview of the current state of implementation of the European Union’s Directive 2001/29/EC, better known as the EU Copyright Directive (EUCD), which seeks to harmonize the divergent European copyright regimes and to transpose the WIPO-treaties (see chart). The paper analyzes the ways in which EU member states have transposed the EUCD’s provisions on the protection of technological measures (such as encryption, digital watermarking, copy-control technologies, etc.) into national law, and takes a closer look at the relevant definitions, exemptions, sanctions and remedies.

In essence, the paper demonstrates that EU member states continue to struggle with some of the thorniest problems already identified at the level of the EUCD, and leave it to the national courts and, ultimately, to the European Court of Justice not only to fine-tune the new legislation, but also to address and resolve rather fundamental issues related to the legal protection of technological measures. The paper suggests that the EUCD, in fact, has led to a certain level of harmonization of member states’ laws, but also identifies and maps significant differences among member states in the field of anti-circumvention laws.

A linklist to international and national legislation on technological protection measures with focus on the relevant laws of EU member states has also been made available here by the Digital Media Project team. Links to other useful materials and sources are posted here. “

Filed by Derek Slater at 10:06 pm under General news
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This is a must-read from SethS.  A reasoned look at Tivo’s increasingly restrictive approach, including how it relates to broader trends in terms of incorporating DRM into devices.  The conclusion:

“In terms of end user control, there is an opportunity for CE devices to converge up (enhancing customers’ control) and a risk of PC devices converging down (eroding it). I think the world the entertainment companies have built is providing exactly the wrong incentive at every point as this question is worked out.”

Filed by Derek Slater at 9:02 pm under General news
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Wired News has a feature on Weed today.  Also, there’s a fascinating article in the NY Times about Universal’s online-only label.  Apparently, they’re focusing on bands with small, established audiences – lower reward here, but probably lower risk, and overall pretty inexpensive for the label.  The artists have to pay their own production costs, but such costs are now rapidly dropping.  Meanwhile, it appears that they get a bigger royalty cut than they would in a typical major label CD deal.

Both articles demonstrate the potential effects of digital technology changing the industries’ cost structure and in turn the relationship between content creators and intermediaries.  Creators have more flexibility in how they release their works, with less reliance on intermediaries, and perhaps greater potential for success given the lower upfront investment needed.  At the same time, intermediaries are also increasing their flexibility.  Universal’s online-only label is basically just a marketer, with some added transaction facilititation responsibilities.  Weed manages transactions and facilitates consumers acting as legitimate distributors, cutting out middlemen. 

Filed by Derek Slater at 2:54 pm under General news
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News.com has the story; here’s the bill in full; PublicKnowledge is generally favorable, though see previous criticism of the ART Act not allowing fair use defenses.  The bill makes it a criimanl offense to record a movie in a theatre or to distribute a work online before its commercial release.  It also protects  companies like ClearPlay and the consumer uses they enable from copyright and trademark infringement suits, and reauthorizes the National Film Preservation Board.

Declan discusses why the entertainment industries haven’t been getting what they want recently.  Take note again of how much better the public interest is being represented today than just a few years ago.  Still playing a lot of defense, but at least it’s relatively successful defense.

Filed by Derek Slater at 2:34 pm under General news
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iTunes’ DRM was much celebrated because it appeared to allow a wide-range of personal uses – unlimited CD burning, shifting to portable players, backing up on other computers.  Many argued that these personal uses would satisfy most every consumer, so the DRM did not depress the product’s value and thus consumer interest.  Putting aside the various private uses that iTunes does not allow, this view seems to overlook the transformative uses, like sampling, that the DRM also impedes.  Many argued that the impact of this restriction is minimal because most people will not be making transformative, creative uses.  Even when you include all the amazing remix culture out there, this is still a small percent

Filed by Derek Slater at 1:39 pm under General news
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This Hiawatha Bray article (via Frank) brings up a really important point.  At some point soon, it may be necessary to revisit the wall between audio streaming and downloading.  People can record audio streams all they want, and, even if it’s illegal, it may be very difficult to stop. Moreover, given how the sound recording compulsory license for non-interactive steaming services, radio stations can acquire licenses without having to use copy-protection. (Note: I am not sure how the composition ASCAP/BMI licenses fit into this, but it appears their terms do not require such copy-protection either – look around, you’ll find people streaming in MP3 format.)

17 USC 114 has two interesting clauses in this regard.  114(2)(C)(vi) basically says that streamers can “take no affirmative steps” to enable recording and should restrict such activity to the extent is able to do so.  114(2)(C)(viii) states that streamers cannot interfere with “technical measures that are widely used by sound recording copyright owners to identify or protect copyrighted works.”

Nothing here seems to requires streamers to use an encrypted format. I’ve wondered whether these clauses would get dealt with in court, or whether we’d end up seeing an amendment to mandate DRM use to get the compulsory license.  Because, the Internet radio compulsory license couldn’t get any messier, right?

As Bray points out, this is another area where social norms and expectations are incredibly out of line with copyright.  Most people I’d bet think recording and permanently keeping copies of TV programs is totally legal.  Maybe, but I’d bet not, in that they’d be regarded as superseding a purchase.  With Internet radio, a copy is ending up on my computer in some form – whether you call it a stream or a copy, the bits are on my computer. Yet I can only acquire those bits on the condition that I not render them in a permanent state to replay them. 

Can norms reach this level of complexity?  Can technology fill the gaps?  Open questions I will have to get back to another day….

Filed by Derek Slater at 8:37 pm under General news
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More news via Paidcontent.  Still very short on details on whether we’re likely to see PPD or subscription services come out of this.  Rafat notes that services might allow sharing of low-quality copies for free and enable people to purchase the legit copies.  I say again: why not use superdistribution to bring this sort of service direct to consumers who are already in P2P?  Why not embrace P2P, not just by creating analogous environments to current P2P systems, but by selling directly through the current systems?  If you use something like Weedshare, you can use consumers as distributors and take your content to all the millions of eyeballs already in KaZaA, eDonkey, et. al. 

It’s worth noting that John Beezer, head of Weedshare, sees superdistribution working hand in hand with closed, filtered networks – see his comments to this post.  To me, the real power in embracing superdistribution now is that it gives a convenient way for people to convert their currently illegal behavior into lawful forms, retaining the ability to share and try out content.  You don’t have to shift consumers out of current P2P environments, and you don’t have to convince P2P services to filter.

This would, of course, require giving up on suing P2P networks and spoofing, but I don’t see the industries gaining much from that right now. 

Filed by Derek Slater at 2:36 pm under General news
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So reports Digital Music News.  Snocap is also reportedly involved in the BMG/Mashboxx/Grokster deal. 

It’s that only these closed network ventures get attention, while superdistribution services like Weedshare are left in the cold.  I understand the worry that distributing Weed files on KaZaA might lead people to then download infringing content, and the record companies don’t want to support those P2P ventures; however, Weed would help give them an easy alternative to those already on KaZaA – it wouldn’t really create greater illusion of illegitimacy to illegal downloading.  If they’re going to embrace a service like Grokster via Mashboxx, why not simply take the next step?

Filed by Derek Slater at 5:09 pm under General news
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Far too cool.  Get your Wired CD lossless files and loops, mix and mash.

Filed by Derek Slater at 6:21 pm under General news
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This article reminded me to check out Mercora.  So far, I’m  pleased with it, despite some quality problems in the streams.  For those not familiar, Mercora enables P2P streaming of music just like an Internet radio station.  Users host the content, and Mercora pays all the licensing fees and apparently ensures that it meets the requirements of 17 USC 114.  You can search for what is currently being played and what songs are in someone’s library, but you don’t know specifically what will be played next.  The interface is decent – for each station, it shows artist information and provides a link to the album on Amazon.  Quality is variable, but at least you aren’t stuck with tons of commercials, as in the free version of Live365.

Still waiting for someone to implement Todd Larson’s Communicast, a peer-rating based web radio station.

Filed by Derek Slater at 5:15 pm under General news
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Ernest’s new show on Lexmark is up.  It was my pleasure to join in the fun, along with the most insightful Jason Schultz and Joe Gratz.

Filed by Derek Slater at 2:19 pm under Big Ideas
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